Commentary and Criqitues, Analysis and Synthesis

Tag Archives: intellectual property law

“Angel Pumping Gas” is not a song about copyright regulatory policy, artificial intelligence, or cryptocurrency. I’m going to use it to round up all three of those subjects in this blog post.

Music Modernization Act: Not Enough Of a Good Thing

“Why won’t this moment last?”

A.

“Angel Pumping Gas” is a 1999 song by the band Lindsey Pool, the second track on the album Postal. The song was circulated around various music sharing sites and services—but it was erroneously attributed to the band The Postal Service. Even now, comments sections on YouTube express surprise concerning the song’s artist. Google’s first result for lyrics attributes the song to The Postal Service. This serves as a clear, simple example of how easily information spreads online, and how difficult it can be to correct information online. If early 2000’s music sharing used a single database held the information for every published song, such an error might have never happened. A new law requires the creation of such a database, but there’s a lot still up in the air.

The biggest open question from the Music Modernization Act is: Who is going to create and maintain the required database of songs and rights holders? The law mentions that a database will be made, presumably by the Mechanical Licensing Collective that the law also creates. This is only forces everyone to ask more questions: who will be on the board of the Mechanical Licensing Collective? What methods will this organization use to create this database?

B.

Measured by content, “Angel Pumping Gas” is little more than an unnecessarily detailed recounting of purchasing gasoline. In fact, the middle two-thirds of the song is an entirely banal description of an entirely ordinary and unremarkable transaction. Only the beginning and ending of the song (and chorus) frame the experience in terms of the romance and desire that the singer feels. It’s either beautiful post-modern appreciation of the beauty in the mundane encounters of our lives, or it’s just a little bit silly.

The Music Modernization Act is either a beautiful resolution of a pressing problem in the music industry, or it’s just a little bit too narrow to be worth caring about. The Music Modernization Act was passed unanimously by the House. Sound Exchange and the RIAA have praised it. It seems like everyone loves it, so I was surprised to learn how narrowly tailored the new law is. It is almost entirely focused on problems specific to digital streaming of music. Though there were issues that required resolution in this area, there remain enormous gaps between current copyright law and the daily use of media and technology. It is unsurprising that the problem that got addressed was one that concerned the rich and powerful (record labels, digital platforms), but they did take the opportunity to include studio professionals in the legislation—a group that has historically be neglected. Music Modernization Act is not as far behind the times as I expected: it’s not a response to Napster, it’s a response to Spotify… but I would still like a more satisfying response to Napster than the DMCA.

Artificial Intelligence All Around Us– And We Don’t Know What It’s Doing

“You ask ‘What Can I do?’ I say ‘unleaded fuel.’ You open up my tank and start the pump.”

“Angel Pumping Gas” is a wistful ballad that describes a brief meeting with a filling station attendant, with whom the singer is immediately infatuated. Filling station attendants are rare in 48 of the 50 states (NJ and OR have laws against filling one’s own gas tank… as does the town of Huntington, NY). The entire premise for the song is slightly alien to the tens of millions of Americans who have always pumped their own gasoline.

For most young Americans in the 90s, gas station attendants were a historical curiosity—something referenced in films in the 50s and 60s. However, for residents of NJ and OR, having someone else fuel your car was a commonplace occurrence. Today’s emerging technologies have the same impact: a device or service is either a commonplace part of your life, or it’s a foreign concept. Twitter, Facebook, Alexa, Smartphone GPS navigation, Netflix, Twitch, YouTube, AmazonPrime- all of these things are, for most Americans, either so commonplace as to be unremarkable, or are simply not part of your life. As technology becomes more integrated in our lives, the difference between so-called “haves” and “have-nots” becomes more pronounced. The very premise of the song creates a divide in the audience: there those who have encountered a filling station attendant, and those who have not.

Our relationship with technology is already creating visible divides in our population. We aren’t always sure who is a bot, though some of us are willing to pay a lot for their art. Even as AI becomes an essential tool for the largest companies that manage important aspects of our lives, the law has no idea how it will handle the legal aspects of a tool that is on a complicated trajectory. Artificial intelligence is steadily becoming more and more commonplace- but the majority of us can’t see how or where AI is being used, much less which systems use what kind of data. Like a teen in the 90’s listening to a song about a filling station attendant, most people who hear about bots and AI have to turn to movies and pop culture references to draw up a mental picture, rather than rely on our own experiences.

Cryptocurrency’s Perpetual Hype

“You walk over my way, I didn’t know what to say… I think that I love you, or maybe it’s just the fumes.”

The song details the singer’s desire and longing, wallowing in the idea of feeling a romantic desire for someone he doesn’t know. The song juxtaposes the intensity of the singer’s amorous emotions with the brevity and shallowness of the interaction. Our popular culture mirrors this adolescent infatuation in our reactions to new technologies: sudden, intense waves of excited fervor for a world-changing device or platform that either never arrives or seems to evaporate into the past shortly after it appears. (I have written before about the hype surrounding the Internet of Things… )

Cryptocurrency prices are down, but it doesn’t feel like the hype has suffered at all. The estate of one of the Wu-Tang Clan is starting a cryptocurrency, to be named after the deceased: Dirty Coin. The strangest part of this is that I haven’t seen blockchain applied in the kinds of contexts I expected it to find more success: online games, a new kind of customer loyalty program, or other gimmicky, comparatively low-stakes settings. Perhaps the hype is fueled by risk-taking and gambling, and such settings aren’t thrilling enough. This is unfortunate, because turning down the hype would allow the technology to actually move forward in much more appropriate, smaller steps, rather than trying to change the world all at once.

Is the gas station attendant in the song the destined One True Love of the singer? It’s not impossible. Are there are a lot of fumes around gas stations? In my experience, yes- always, in fact. Will cryptocurrencies bring about a Utopian future? It’s not impossible. Do crowds tend to favor exciting hype over careful, substantive analysis? In my experience, yes- always, in fact.

Conclusion

“We share our precious moment in a glance… and as I drive away, her memory’s here to stay—her deep blue eyes have left me in a trance.”

The singer bemoans that he needs to leave, as the road calls him away. His lack of control is an unstated axiom of the logic that he must follow. The singer is a passive pawn of forces around him: fate, the road, filling station attendant (her authority to invoke payment and her beauty), the transaction, his emotions. He begins the song by attributing the encounter to fate and concludes with the resigned acceptance that the separation is, perhaps, better for all involved. This is not a song about a person taking decisive actions; this is a song about a consumer making his way through a brief and common transaction in the life of a middle-American.

Society seems to display about as much mindfulness and self-possession in approaching technology. We owe it to ourselves to take more effort and more thought regarding our laws and our technology than an adolescent’s unapproached crush.

If Net Neutrality is an argument about economics (and federal administrative law), Content Regulation is an argument about ethics and culture.

Net Neutrality is becoming an old hobby horse for a lot of people. It gets a lot more attention than most telecommunications policy issues. Even though questions about copper wire lines vs fiber optic cables actually affects more people, the internet is generally united by the fact of its own existence. This is about regulation at the highest level, determining the equality and/or equity of access to content. No one online is indifferent to the internet—the only debate about net neutrality is which policies are best for the consumer and the telecommunications marketplace (or, in the United States, “telecommunications marketplace”).

But there is another layer of regulation that is quickly gaining attention. If Net Neutrality is about the form of the internet (its structure and broad organization), there is a growing need to consider questions about the regulation of the content of the internet. Over the years, the internet has been a vector for some amazingly good and amazingly bad actions by humans. The differences in the kind of regulatory concept at play are hard to understate. Rather than comparing it to different video games, I would compare it to the difference between a video game and a tabletop game.

1) I’ve always been fascinated by the dawn of the computer age. My childhood was the tail-end of a world in which homes did not have internet access. By the start of law school, everyone looked up famous cases and Latin phrases on Wikipedia during class (except for the people who did the reading the night before- they looked it up before class). I’ve often compared the early days of the internet to a kind of Wild West setting: a lawless frontier where fundamental questions about the mold of civilization were not yet settled. I thought most of those questions would be settled by 2015. We are not close to a consensus on rules. Indeed, we are still testing what types of rules are feasible or desirable.

Video games are literally made of rules: the computer code that constitutes the game itself. Tabletop games are made of… usually cardboard, or some kind of paper. (Occasionally, they have some plastic – or even metal if you got the collector’s edition.) This may sound like a silly or vacuous distinction, but it has important ramifications for the kinds of problems that can happen in a game, and the kinds of solutions that will (or won’t) be effective.

2) Lawlessness can lead to problems. This was probably not known until 2 decades of unfettered internet, but now we know. Free to do anything, people have tried very hard to do everything. Every app, platform, hosting site, game, or program online that gets big enough eventually starts to experience just about every problem type that humans can present. From intellectual property disputes to death threats, from fraud to manslaughter, the internet has been a way for people to discover criminal behaviors that past generations could never have the opportunity to access. The unethical choices of both multi-national companies and village simpletons are available for repeated viewing.

In a video game, the code can sometimes glitch and create problems for players. The code can also execute perfectly, but there may be complaints about the design of the game itself (a level being too difficult or some power or tactic being of an unsuitable level of power). With some difficulty, players can cheat by actually breaking the code, but more games can detect this (and especially so in professional e-sports settings). In a tabletop game, anyone can cheat, the rules may be wrongly applied (or not applied at all), and all manner of chaos can ensue. DDoSing an opponent during a game might be a little bit akin to literally flipping a table during a game of Monopoly or checkers,

3) YouTube’s takedown system is already an example of an effort to regulate content, and it already shows some of the challenges with instituting a content regulation system: people will find ways to game that system. Any system of regulation will have two negative outcomes: it will penalize the innocent, and it will be dodged by the guilty. The most you can hope for is that it will protect most of the innocent and it will penalize most of the guilty. The US justice system, even when working as intended, will sometimes produce undesirable results: a guilty person will go free, and an innocent person will go to prison. The hope is that this happens very infrequently.

The most common reaction to bad behavior online has been for authoritative parties to do nothing. The most common reaction by authoritative parties to actually do something has been to ban the bad actor. The most common reaction to this ban is to come back with a different username or account.

In video games, cheaters are often banned (if they are making the game worse for other players). But in table top games, people who ruin the game are just not invited back. No one will play with them anymore. People might hang out with someone less if they behaved in a wildly unacceptable way during a casual weekend game of Risk or Werewolf. In a video game, bad behavior has very limited consequences. In a tabletop game, bad behavior can have lots of meaningful implications.

4) What would it look like to regular content? Getting it wrong is easy — which is the primary reason that’s what’s going to continue to happen. Whether trying to penalize criminals or regulate behavior online, creating a fair and ethical system that consistently produces more good results than bad ones is difficult. One problem is that incentives are at odds: most platforms want to turn a profit, and if bad behavior yields a net gain, the platform needs a solution that will actually make more money than the current bad behavior (plus the cost of implementing the remedy). Another problem is that platforms tend to think of regulating their content the way that most Americans think about regulations: an appointed governing authority (or combination of authorities).

Conclusion

You can’t make people be good, but you can keep deleting all of their manifestations of their behavior on the internet: You can suspend or ban accounts, and eventually IP addresses. You can automatically censor strings of characters, and continually update the list of banned strings. These will continue to be the solutions offered, and they will continue to mostly fail while they almost half-succeed.

Over a decade ago, Lawerence Lessig asserted that laws are of four types: market, cultural, legal, and architectural. It turns out that enforcing the legal type of law in a digital space is very difficult. But cultural norms practically enforce themselves. And architectural laws are always already enforced. Market rules can be fickle, but persuasive. A lot of efforts to regulate content will fail because they will hinge on the concepts of legal enforcement.

The lack of rules and regulations is what made the internet a place where amazing things could happen. Without rules to stop imagination and creativity, people created art, solved problems, built positive communities, and enriched themselves and each other. In that same landscape: without rules to stop hate and anger, people created harassment and bullying, invaded privacy, ruined lives, occasionally killed people, and destroyed a lot of good in the world. Lawless frontiers are the best opportunity for the most beautiful, important, and inspiring expressions of humanity. They are also the best opportunities for the most despicable, dangerous, and damaging expressions of humanity. What the internet becomes will be decided—has always been decided—by what people bring to it.

If you’ve been on the web for a while, you’ve seen an advertisement that looks like the user interface of the website you’re viewing- or maybe an ad that has a false close button, and clicking it just navigates you to the advertised page. These are blatant ways to trick consumers into taking actions they don’t want to take. Sometimes, these inadvertent actions can create security vulnerabilities such as malware.

Despite all of the focus on applying copyright law to the internet, I wonder if there are hints of trademark and trade dress protections that could become relevant to data privacy issues. I will cautiously, even timidly, explore a few of those possibilities (which several others have explored over the last few years).

I. Trademarks: When it Comes to Data Privacy, Accept No Imitations.

Trademarks have a simple purpose: to let consumers know the origin of a good or service. Trademarks are often a word, phrase, or image (logo), but can also be a sound or smell (on rare occasion, it can get a bit more abstract ).

A major category of trademark infringement is counterfeiting. That $20 “ROLEX” watch from the guy in the alley? That’s a counterfeit (sorry), and one of the legal issues involved in the sale of that watch is the use of a trademark without the legal right to use it. There haven’t been a lot of counterfeit websites on the internet, especially since SSL and other authentication processes got better. However, there are plenty of imitation apps and games. One of the reasons such apps and games fail and are quickly removed from distribution is that they infringe trademarks.

However, some countries do not have the same standards regarding trademark (or copyright) enforcement. Consider an imitation League of Legends game, lampooned here. At the end of the video, the player says “Oh, and it’s also a virus,” as his security software reports malware after playing the game. This humorously underscores the point that many infringing* products pose a security and privacy threat. Using trademark law to limit the proliferation of readily accessible, easily confused programs is a valuable practice in maintaining computer security for consumers.

II. Trade Dress: No One Really “Owns” That Icon… But You Know Who Owns That Icon.

Trade dress is a sort of sub-category of trademarks. It’s rarely talked about or used, but it can be thought of as the totality of design and aesthetics that go into a product, place, or service that make consumers identify the source. Color palette, patterns, shapes, and other factors go into the evaluation of trade dress. Crucially (and perhaps fatally), elements of a trade dress must be considered “non-functional.” For example, the major case in trade dress concerned a Tex-Mex restaurant that used the same colors and layout of another Tex-Mex restaurant.

Here’s the controversial idea I think deserves consideration: Could misleading, camouflaged web content be considered an infringement of trade dress? (Think of the kinds of ads that make you believe you’re not clicking on an ad, but rather some piece of actual content on the site- especially regarding navigation buttons that match the navigation icons of the site.)

The reason I look to trade dress for a solution is that icons and interfaces, even stylized ones, are not subject to trademark, copyright, or patent protections. Furthermore, websites are increasingly treated as the digital equivalent of stores and offices of businesses- so much so that designs and layouts can come to be the trade dress of that business. Thus, there is a gap in the legal protection of user interfaces, and a need to cover that gap.

(Treating websites as subject to trade dress might have the added benefit of discouraging UX and UI designers from fiddling with the location and arrangement of navigation tools every other month just to justify their paycheck. And that’s the kind of change this world really needs.)

Conclusion: Trademark Protection is Already Working, Trade Dress is Still Vague and Untested

Trademark law is already quietly making the digital ecosystem a little bit safer by eschewing threatening knock-off games and apps. I think there’s a case to be made for applying trade dress to websites and UIs, but it would be a novel application and courts may be hesitant to apply the law so creatively.

* “300 Heroes” Infringes both copyrights and trademarks, but it’s the funniest example.

I’ve always been a fan of the minimalist art style. As an art style and a category of interior design, it gets a lot of adjectives like “clean,” “crisp,” “pure,” “uncluttered,” and “bright.” I’d have to agree that Mini Metro is a game with a minimalist art style. But the aesthetic isn’t the only thing that appeals to me. The game mechanic is about connecting: making a metro system that is as efficient as possible as a city places ever-increasing demands on the network.

I love the concept of connection. I love to connect ideas and words, and I have spent most of my life studying and forming such connections. Careful, structured explanations of connection and disconnection are at the heart of the practices of both philosophy and law. Like most humans, I also cherish my close connections with others. At every level, and in every sense, connection thrills and amazes me.
Mini Metro is a game that is a design model for making connections— So it’s fitting that I use it as a model to connect the areas of law in which I am interested.

The railway network itself is the telecommunications infrastructure. The people that travel on the network are the entertainment content of the digital age: text, pictures, audio, movies, games—almost all of it subject to copyright law. The signage around train stations tells people about the places: it helps people make choices based on comparative information. I admit this is the biggest stretch in the analogy, but I’m comparing that to trademarks because of the informative function that aims to dispel confusion. And of course, there are safety concerns around all public transportation. Cybersecurity, by and large, is the safety structure for the internet: it is the area of law that tries to get everyone to navigate the system without tragic injury. And just as trains are regulated, this digital structure enjoys some oversight by the FCC (in the form of general regulatory rules) and FTC (in the form of consumer protection enforcement).

One of my favourite moments in Mini Metro is when a station appears on a line I have already built. I don’t really know if this is just the RNG-gods smiling down upon me, or if there is a definite structure and these moments are signs that I have designed optimally. In the effort to connect law and technology, sometimes a new device or idea appears that can force a re-drawing of the legal lines. Part of me wants to think that a law can be created with the future in sight, but the speed and direction of technological developments are so amazing that I don’t know if policy design can do better than hope for luck.

Mini Metro can be used to explain how my areas of interest relate to one another. It can also explain why I love these things, too. In the abstract, the game is about making it possible for people to go places. It is about how large-scale design decisions affect humble individuals. Technology and law are connected to each other—and both are connected to individual lives and to society, generally. The magic of connection is that it makes each individual node matter to the other nodes with which it connects. A single idea, or law, or device, or person—nothing is all that interesting, meaningful, or exciting until it is connected to other things in the world. Then both the connector and the connected affect and transform one another as they interact. In this way, the relationship between law and technology is like a relationship between people. Whether they are friends or enemies, they will shape each other because they are connected.

I am not a lawyer and this is not legal advice. (If my blog was more legally-themed, I might have given it this title.)

TL;DR/WR: Trademark law is more complex than the angry mob imagines. Candy Crush can only get limited protection (if any), but there are reasons to protect the name of your product. Trademark law isn’t “broken” just because someone may have tried too hard.

I was ready to give up on ever blogging about law and videogames again. I thought there might opportunities for broader technology-and-law issues, but I felt that my posts on videogames and law were inorganic, forced, unclear, and boring.

Then, the makers of “Candy Crush Saga” decided to file for a federal trademark registration. And lo, the analysis by the critics and journalists was poor. Not that I blame them- but I’m happy to write about something I’ve actually studied and grasped and is based on existing law. Most emerging videogame law issues are just massive question marks with no prior cases or statutes to guide an analysis. Trademark law still has its wrinkles and questions, but it has a lot of established material to consider.

THE ISSUE, as I understand it, is that developer King has decided that its product “Candy Crush Saga” is valuable enough to protect as a trademark. Accordingly, it has filed for a federal trademark registration (currently pending and open to comment) and has opposed the trademark registration of “Banner Saga” by developers of the recent release “Banner Saga” for use of the word “Saga” in a videogame title on the basis of likely consumer confusion.

Few people in the games journalism world seem pleased about any of this. Leading the angry pack, as always, is a profanity-laced rant by Jim Sterling, with Penny Arcade in strong agreement. Kotaku doesn’t like it, and neither does Joystiq or Rock, Paper, Shotgun. Lots of gamer resources are taking note of the trademark dispute. Some have looked at a broader scope than others, but I have not seen any serious measure of support for the protection of the intellectual property of a product raking in approximately one million dollars per day in revenue. After reading a few emotionally charged reports, I am not so sure people fully grasp what trademark law is or why we have it.

There are lots of interesting parts of trademark law, but the role of language is one of my favorites. The Penny Arcade comic hits at what I love about Trademark issues- they are wrapped up in language, and I love philosophy of language and linguistics. (I love copyright issues because of their relationship with metaphysics, but that’s for another day.) One of the tangles trademark law must face is to avoid allowing words to become property in a way that gets in the way of competition (or, more jokingly, everyday speech). But, as with other IP areas, trademark law is about more than words. It is about the effort that has gone into making an abstract into something valuable. Ten years ago, how many t-shirts could you sell with the words and logo of what we now know as the Candy Crush Saga logo? Maybe a few to some hipsters who treasure the obscurity? Would you rather own a store selling Candy Crush Saga merchandise today or try to sell the same merchandise 10 years ago? Trademarks have little market value until they are known. No one knows a trademark until a lot of work has gone into marketing, branding, and making a product that people like and care about.

THE ANALYSIS is straightforward, once trademark law is rightly understood. All property law is an effort to sort out competing claims about ownership. While the subject of intellectual property law can’t be physically touched like the subjects of personal property or real estate can, it is still rooted in some Lockean notion of “I worked hard for this and it isn’t fair for you to just take it for yourself.” Trademark law can be understood in this way: “A company works very hard to make the public associate its mark with its quality product. No one else is entitled to reach out and benefit from that effort for their own gain.” Trademark law allows a company like King to to prevent other companies from using the goodwill built up by King to promote other company’s products. (What if Coca-Cola tricked you into buying a Coke when you thought you were getting a Pepsi, or vice-versa?) Many of the journalists have pointed out that no one is going to confuse Candy Crush for Banner Saga, and consumer confusion is at the core of trademark law. If the court (or trademark examiner) finds that there is no risk of consumer confusion, King’s complaint will almost certainly be thrown out. But the fact that King can bring this kind of complaint does not mean trademark law is entirely broken or obsolete. There are other factors at play as well, such as whether “Candy Crush Saga” is a suggestive mark or even a descriptive mark (which is a very weak kind of mark, compared with fanciful or arbitrary trademarks, which are prone to enjoying easier protection). So the tension in this case is understood this way: King has a valuable product they want to protect according to their right, but protecting their product may clash with the efforts of others to promote their products. (And I think that describes at least a third of trademark law.)

We notice the law most when it doesn’t work the way we want or expect. When a jagged corner of the law fails to match our intuitive understanding of justice and fairness, we can become disturbed that our system is inappropriate or inadequate- and maybe we have noticed a particular part of the system that is exactly that. But the law is always an effort to balance the multitude of possible competing claims that might be brought into a legal contest. We should always keep in mind how a solution to one problem will affect other parts of the law. Even writing this makes me feel that trademark law can be a bit like a blanket that doesn’t quite cover you right: when you pull it over your toes, your shoulders get cold, so when you pull it up to your shoulders, your toes get cold. That means the blanket is really bad and should be destroyed- it just means we need to figure something out to cover everything we need to cover at the same time.

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EDITORIALIZING:

Maybe if King didn’t just make a knock-off of Pop Cap’s Bejeweled (which was itself preceded by a game called Saint-Tropez, which can probably be traced all the way back to the strategy game “Go”) with a really unimaginative and descriptive name, none of this would even be a problem. But hey- I’m not making a million dollars a day. No one pays that much for understanding language or law.